R v Qaumi (No 63)

[2016] NSWSC 1216

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 63) [2016] NSWSC 1216
Hearing dates:	29-30 August 2016
Date of orders:	30 August 2016
Decision date:	30 August 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1) The defence of self-defence will be put to the jury. (2) The defence of duress will be put to the jury in Kalal’s case. (3) The issue of whether manslaughter by unlawful and dangerous act should be put to the jury is deferred until counsel’s addresses.
Catchwords:	CRIMINAL LAW – SELF DEFENCE – availability of defence – gangland violence – Brothers for Life - where accused believe contract taken out by target of shooting – whether self-defence arises – whether criminal enterprise encompassed killing people who posed no threat – whether defence should be left to the jury – question of fact – requirement to put defence to the jury unless untenable CRIMINAL LAW – DURESS – availability of defence – whether duress should be left to the jury – where accused voluntarily joined criminal gang – whether defence available to members of criminal gang – whether defence available where accused knew he may be subject to unlawful compulsion – uncertainty in authorities
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction:	No publication until the conclusion of the trial.

EX TEMPORE Judgment

1. At the conclusion of the prosecution case, a number of issues were ventilated by the parties.

Tendency Evidence

2. The first issue concerned an application by the Crown to rely on evidence of tendency. After an exchange of submissions and other documents, that issue was resolved. The evidence, which at one time was identified as tendency evidence, is to be relied on by the Crown but not as tendency evidence as that expression is defined in the Evidence Act 1995 (NSW). The particular circumstances and evidence are set out in a document MFI 206. The evidence will now be relied on by the Crown as part of a circumstantial case, and also to support aspects of various witnesses' credibility, and also to place the events in their true context. I do not suggest by that, that this is the limit of the use to which the Crown can put the evidence and, in particular, the Crown will be able to make submissions in relation to the evidence relating to one count as relevant to, and possibly supportive of, the evidence and prosecution case and Crown witnesses insofar as their evidence relates to other counts.

3. However, the Crown will not contend, and as presently advised will not be permitted to contend, that any relevant tendency or state of mind established by evidence of any accused's "character, reputation or conduct" can be used to prove that the accused "has or had a tendency, whether because of the person's character or otherwise, to act in a particular way or to have a particular state of mind", for example, to form a particular or specific intention.

Self-defence on counts 1 and 2

4. The second issue was whether Jamil Qaumi could rely on self-defence in relation to counts 1 and 2. It was accepted by the Crown that self-defence would properly be able to be put to the jury in respect of count 3, which is a conspiracy count, and the conspiracy being to murder Mohammed Hamzy.

5. The Crown submitted that the issue of self-defence should not go to the jury in respect of counts 1 and 2 for a variety of reasons. Count 1 is an allegation of murder of Mahmoud Hamzy and count 2 is an allegation of the infliction of grievous bodily harm with intent on a man called Omar Ajaj.

6. The first reason put by the prosecution that self-defence could not go to the jury in Jamil Qaumi's case was based on Jamil Qaumi's own evidence, which was that he believed, at some stage immediately before entering the garage, that it was not necessary to kill Mohammed Hamzy and yet he continued to take part in a joint criminal enterprise which, at its outset, involved just that intention, that is to say, a deliberate attempt to kill Mohammed Hamzy. The Crown submitted that unless Jamil Qaumi actively withdrew from the enterprise, he was liable for the actions of the other participants under ordinary concepts of joint criminal enterprise or under concepts of accessorial liability. He could not rely on self-defence because he did not have the relevant belief, that is, that it was necessary to do what he did in defence either of himself or his brother when he entered the garage where the shooting take place.

7. Secondly, the Crown submitted that the original agreement involved a direction to kill anybody who happened to be in the garage where the target was expected to be. It was submitted that self-defence did not arise because it could not be held by the jury that it was necessary in self-defence to kill any person who happened to be present.

8. The evidence in respect of both issues raised by the Crown is, in its very nature, confusing and in some cases contradictory.

9. There are at least three possibilities arising from the evidence as to what the scope of the original enterprise was. One was that it was a specific enterprise designed to kill one person, that person being Mohammed Hamzy. The second version is that it was an enterprise to kill Mohammed Hamzy and "his boys", which could properly be understood as a reference to members of Mohammed Hamzy's criminal gang. The third possibility is that the agreement or enterprise encompassed killing anybody who just happened to be in the presence of Mohammed Hamzy in the garage that night.

10. I accept that the Crown has presented strong arguments against a jury accepting self-defence or, more correctly, for it to be satisfied beyond a reasonable doubt that self-defence has been negatived.

11. Ms Carroll, on behalf of Jamil Qaumi, took me carefully through a large number of parts of the transcript to support the proposition that self-defence at least arises and should be left with the tribunal of fact to determine. I accept that there is some evidence capable of supporting the proposition that immediately before the gunmen, which included Jamil Qaumi and Witness L, entered the garage, the nature of the enterprise changed such that the jury could conceivably accept that self-defence is not excluded. [1]

    1. It is also possible that the jury will reject his evidence of the conversation with Witness L and would be bound to consider the question of self-defence on the basis of the original understanding that the target was to be killed in order to protect Farhad Qaumi. The question of precisely what directions the jury should receive on this issue of a “variation” (as put by counsel) to the enterprise is yet to be subject of full argument. These observation and this footnote were added after judgment was delivered.

12. In respect of the second of the Crown's arguments, there is a variety of pieces of evidence. As I have said, it may be that the jury will accept that the enterprise include d killing anybody who happened to be present. If it comes to that finding, self-defence would not arise in the sense that it could not be held to be a reasonable response to the threat as it existed. However, it is equally possible, or at least also possible, that the agreement was to kill Mohammed Hamzy himself, or Mohammed Hamzy and his boys or fellow gang members.

13. There is evidence from a number of sources that there was a contract out on Farhad Qaumi's life and that that contract had been taken out by Mohammed Hamzy and, also, that there had been an earlier plot or attempt to kill Farhad Qaumi by Mohammed Hamzy who was present with other members of the Bankstown Brothers for Life.

14. Those facts give rise to an occasion where the defence of self-defence at least arises. Whether the jury will be able to exclude it beyond reasonable doubt will ultimately be a question for it, bearing in mind the other alternatives that may have been available, but it is, I think, when all is said and done, a question for the tribunal of fact rather than for a trial Judge to take the case from the jury.

15. The circumstances in which a trial Judge will do that, that is to say, take a case from a jury, are significantly circumscribed and that fact has relatively recently been confirmed in the case of Lane v R [2013] NSWCCA 317; 241 A Crim R 321 where their Honours referred to the decision of the High Court in Pemble v The Queen [1971] HCA 20; 124 CLR 107:

“39. Since 1971, with respect to charges of murder, however, there is an important qualification to the Alford v Magee principles. Notwithstanding Mraz, it is now well established that, where a person is on trial for murder, and where the evidence in the trial is capable of supporting a verdict of guilty of the lesser offence of manslaughter, it is the duty of the trial judge to direct the jury of its entitlement to acquit the accused of murder and return a verdict of guilty of manslaughter. That is so even if the accused person does not seek such a direction, and even where the accused person actively opposes the direction.

40. That has been the position since the decision of the High Court in Pemble v The Queen [1971] HCA 20; 124 CLR 107. In that case, Barwick CJ, for example, said, at 117:

"... There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial ... Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused ..." (italics added)

In the same case, Menzies J said:

"An appeal court is not, of course, concerned to investigate the actual basis upon which a jury has returned its verdict, but the events which I have outlined emphasize that the conduct of a case by counsel does not impose any limit upon the course which the jury may take and cannot make superfluous a full and accurate direction covering all that must be proved before a verdict of guilty can be returned ...

... Furthermore it is always in the power of a jury to acquit and that power cannot be denied ... Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused. The law is always for the judge as counsel for the defence rightly told the jury ..." (italics added)

Windeyer J said:

"... Of course this appeal cannot depend upon the form which advocacy took or upon the issue counsel presented to the jury ..."

Finally, Owen J said:

"... On several occasions during his address to the jury the solicitor appearing for the appellant disclaimed any suggestion that his client should be acquitted of both murder and manslaughter. He asked the jury to acquit his client on the charge of murder and to return a verdict of guilty on the charge of manslaughter. The case was thus fought on the basis that the only question was whether the appellant was guilty of murder or not guilty of murder but guilty of manslaughter and it was in this way that the learned trial judge charged the jury ..."

41. In that case, the verdict of guilty of murder was set aside and, by majority, a verdict of guilty of manslaughter was substituted. The Court divided as to the outcome, and as to the reasoning processes. The commonality is in the passages extracted above - the duty of the trial judge, notwithstanding tactical or other decisions taken by an accused or counsel, to give the jury directions as to verdicts available on the evidence. It will be noted that, in the passages extracted, and in the foregoing statement at [39], words to the effect of "on the evidence" have been italicised. They are a critical element of the principle.

42. This Court has concisely stated the current position, in four propositions, as follows:

"(1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is 'viable').

(2) However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter but, if they persist in that verdict, the judge must accept it.

(3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury - notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury.

(4)(a) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law.

(b) Subject to the provisions of the Criminal Appeal Rules 1952 (NSW), r 4 (see [99]-[100]), the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred.

(c) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial." (italics added)

R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 per Hunt AJA, Buddin and Hoeben JJ.”

16. The fact that the wrong person (that is, Mahmoud Hamzy) was killed and another apparently innocent attendee (that is, Omar Ajaj) was shot and that the assassins did not manage to kill Mohammed Hamzy does not detract from the availability of the defence at law. The evidence allows for an inference that the shooters shot at Mahmoud Hamzy believing him to be Mohammed Hamzy and that Omar Ajaj was sitting in a position where he was shot by mistake.

17. For those reasons, in Jamil Qaumi’s case on counts 1 and 2, I propose to leave the defence of self-defence for consideration by the jury. That decision encompasses instructing the jury as to the availability of verdicts of not guilty, guilty of manslaughter by excessive self-defence and, of course, guilty if self-defence is excluded both objectively and subjectively.

18. The third issue was whether self-defence should be left to the jury in respect of Farhad Qaumi and Mumtaz Qaumi on counts 1 and 2. For much the same reasons as I have just given in respect of Jamil Qaumi's case, but without the complications that arise as a result of the evidence given by Jamil Qaumi, I have decided that self-defence should be left to the jury in both cases and on the same basis as I have described in Jamil Qaumi's case.

Manslaughter by Unlawful and Dangerous Act

19. The fourth issue was whether manslaughter by unlawful and dangerous act should be left to the jury in Jamil Qaumi's case. Neither Farhad nor Mumtaz Qaumi made a similar submission or application. I propose, unless somebody persuades me otherwise, to leave for determination that issue until I have heard counsel's addresses. Some of the submissions made in respect of that issue were untenable, [2] but it is unclear at this stage whether it would be open to the jury to conclude that if the shooting was unlawful, that is not done in self-defence, the shooting may nevertheless fall into an unlawful and dangerous act manslaughter because it was done without a murderous intent.

    2. See, for example, at T 6255 & 6275.

Self-defence on counts 4-16

20. The fifth issue was whether or not the defence of self-defence should be left to the jury in respect of the counts arising out of an incident referred to throughout the trial as the Chokolatta Café shooting. That is to say, counts 10, 11, 12, 13, 14, 15 and 16. The Crown ultimately conceded that there was evidence capable of giving rise to the issue of self-defence and I propose to leave that issue to the jury to decide.

21. The sixth issue was whether self-defence should be left in relation to shootings described throughout the trial as the Odisho and Zakaria shootings. Those shootings comprise counts 4, 5, 6, 7, 8 and 9 on the indictment. The issue was raised on behalf of Farhad and Mumtaz Qaumi, although faintly (initially at least), and was also raised on behalf of Jamil Qaumi, whose counsel again took me through the evidence in some little detail.

22. Senior Counsel for Farhad Qaumi also pointed me to the evidence which is the foundation for the whole plan which resulted in those shootings. That involved a meeting that was said to have taken place shortly after the original murder of Mahmoud Hamzy and following a larger meeting of the gang at the Sydney casino. The meeting at the casino is not disputed, but the meeting that took place afterwards is subject to real dispute. It is the defence case that no such meeting occurred. It is the defence case that the particular accused did not give the directions or provide encouragement to any of the people involved in the shooting. Indeed, both through the cross-examination and also the evidence of Jamil Qaumi, the defence case is that the idea of shooting Michael Odisho and Masood Zakaria came from some of the Crown witnesses themselves who, it was said, were fearful that they had been identified as having participated in the Mahmoud Hamzy shooting. Nevertheless, the evidence of what allegedly happened at the meeting upon which the Crown case against Farhad Qaumi and the others rests did involve at least the suggestion that it was thought to be necessary to shoot Odisho and Zakaria because they were ranking members of the Brothers for Life at Bankstown.

23. The Crown submits, quite cogently, that if that is self-defence, it is a funny [3] kind of self-defence because it is self-defence being relied on by the initial aggressors (that is, the perpetrators of the Hamzy shooting). The reason for targeting Odisho and Zakaria is that there was a belief that the targets knew that the Blacktown Chapter was responsible for the Hamzy shooting. In those circumstances, it is not terribly surprising that Senior Counsel for both Mumtaz and Farhad Qaumi indicate that they do not intend to address the jury on the issue of self-defence in respect of those counts. Counsel for Jamil Qaumi indicated that she may mount such an argument in the course of her submissions.

    3. In revising this judgment, I realised that I ought to have used the word “unusual” and stressed that the learned Crown Prosecutor did not use this word but took the position that it was open to me to take the defence away from the jury because the accused men were the original aggressors.

20. However, the fact that counsel elects not to conduct a defence does not relieve a trial Judge from at least leaving to the jury matters that might be seen to arise on the evidence (or where there is a viable defence): Pemble v The Queen. While self-defence, in my assessment, is a defence with almost no prospects of success in relation to counts 4-9, I am of the opinion that the defence does arise on the evidence and I propose at least to direct the jury in respect of each of those counts that it is for the Crown to rebut or negative the issue of self-defence in respect of Odisho and Zakaria shootings. There will also be directions as to the fact that the accused themselves do not appear to rely upon it and other issues of fact that may suggest that the defence is not the real issue in those counts but it will ultimately be part of the legal directions concerning the things that the jury needs to be satisfied of beyond a reasonable doubt; namely, that the acts were not done in self-defence or in defence of another.

Duress in Mr Kalal’s case

25. The final issue concerned the accused Mohammed Kalal. It is a difficult issue to resolve because of an absence of authority on a particularly pertinent part of the argument and, insofar as there is authority, I am at this stage unpersuaded that the authority represents the law of New South Wales. The issue is whether or not, in Mr Kalal's case in respect of the Zakaria and Chokolatta Café shootings, an issue of duress should be left to the jury.

26. The learned Crown Prosecutor concedes, or accepts, that there is clear evidence of threats, if not immediately before, at least a very short time before each of those shootings. He also accepts that the evidence supports the proposition that Mr Kalal acted as a result of those threats. I am grateful to the learned Crown Prosecutor for taking me carefully and fairly through the evidence establishing both the threats directed at Mr Kalal and the evidence that supports an inference that he acted as a result of those threats. I will identify a few of the threats made to Mr Kalal.

27. Witness I gave evidence of threats given before the Zakaria shooting: [4]

    4. T 3690-3691.

“Q. Farhad said to the three of you, 'If you don't get Masood, one of youse are going to get shot'. That's what he said to you, isn't it?

A. Yes.

Q. So when you talk about it was him or us, that's what you mean, the threat one of you was going to get shot if you don't get him.

…

Q. After Farhad said that to you, did anybody say anything in relation to that or not?

A. Jamil said, 'Whoever doesn't get him I'm going to shoot him'.

And then at 3701, line 5:

Q. Got the Odisho mess up, now we have got you are not shooting. He is unhappy with you, isn't he?

A. Yes.”

28. There is also evidence that before the Chokolatta Café shooting Jamil Qaumi said to Mr Kalal:

“If you don't do it I'll have to get your family, sorry bro, like it's effectively not a game.”

29. However, even though the prosecution accepts that such threats exist, it is submitted that the defence of duress is not available for two reasons.

30. The first is that Mr Kalal voluntarily joined an illegal organisation knowing, or where he ought reasonably to have known, that he may be the subject of compulsion by those people who were members of the organisation. He points to a body of evidence that has been elicited by counsel for Mr Kalal in which it is said that his client became aware of other acts of violence and threats and intimidation engaged in by the leadership of the Brothers for Life at Blacktown. In making that submission reliance is placed on a decision of the House of Lords in Hasan v R [2005] UKHL 22:

“38. …The policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them. It is not necessary in this case to decide whether or to what extent that principle applies if an undercover agent penetrates a criminal gang for bona fide law enforcement purposes and is compelled by the gang to commit criminal acts.

39. I would answer this certified question by saying that the defence of duress is excluded when as a result of the accused's voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence...”

31. Hasan, decided in 2003, purported to overrule an earlier case of Baker and Ward [1999] 2 Cr App R 335. Baker and Ward presented a different test at 344:

“What a defendant has to be aware of is the risk that the group might try to coerce him into committing criminal offences of the type for which he is being tried by the use of violence or threats of violence.”

32. [In Hasan, Lord Bingham held that this test misstated the law. There are two significant differences between the law as stated in Hasan on the one hand and Baker and Ward on the other. The first is that Baker and Ward required subjective awareness or foresight on the part of the accused while Hasan said that an objective test was sufficient. The second is that Baker and Ward required knowledge or foresight that the accused may be forced to commit criminal offences of a similar kind to that under indictment while Hasan merely required that the accused ought to have known that he may be subject to compulsion by threats of violence.] [5]

    5. This paragraph was added after judgment was delivered ex tempore.

33. Neither counsel was able to take me to any Australian authority where that conflict of authorities, or change in the law of the United Kingdom, has been considered by an Australian Court. Both counsel referred to the case of Nguyen v R [2008] NSWCCA 22; 181 A Crim R 72. Unfortunately, the comment in that case appears to misstate the law that it purported to apply. That case, decided in 2008 (after both Baker and Ward and Hasan), referred at [28] to a submission by the Crown in which reliance was placed on the decision in Baker and Ward. Nguyen was a case in which a trial Judge took the defence away from the jury and the Crown set out the basis upon which it was submitted that the defence was properly taken away from the jury and why it was not available:

“Where an accused knowingly joined an illegal organisation or otherwise voluntarily put himself or herself in a position where he or she was likely to be subject to an illegal compulsion.”

34. Then reference is made to Baker and Ward. That test, as stated in the submission reproduced by Hodgson JA, appears to be the test from Hasan, and not the test from Baker and Ward. [6] When Hodgson JA decided that the defence was available and should have been left to the jury, his Honour made the following obiter remark at [40]:

“The defence would be excluded if the appellant voluntarily joined an illegal organisation.”

6. Since delivering the judgment ex tempore, I noticed that the same apparent error appears in the current version of the Criminal Trials Courts Bench Book (Update 56, July 2016) at [6-170] note 6.

35. That observation represents a limitation on the defence of duress which goes well and truly beyond either of the decisions that had preceded it in the United Kingdom.

36. Ultimately I am going to have to make some sense of all of that but, at this stage, I simply have to make a decision as to whether or not the defence should at this stage be left to the jury to determine. However, I do not accept that the statement at [40] of the judgment of Nguyen should be followed. It is clearly an obiter comment and, with respect to his Honour (who was not really called upon to determine the issue) it clearly overstates the limitation if such a limitation exists.

37. Taking into account Hasan, it is, in my assessment, a question of fact for the jury to determine in the circumstances of the present case whether Mr Kalal knew or ought reasonably to have known that he may be the subject of compulsion by Farhad Qaumi or his brothers. The evidence does not demonstrate that he had previously been subject to any such compulsion, or that those who participated in the earlier shootings (that is, the Hamzy shooting and the Odisho shooting) had been subject to any unlawful compulsion. It seems, he was otherwise involved in selling drugs for the organisation and had been specifically excluded from the Hamzy plan or shooting.

38. The second basis upon which the learned Crown Prosecutor submitted that the defence of duress did not arise for the jury's consideration was the opportunity that Mr Kalal had to withdraw; first from the criminal organisation itself when he became aware of the violence in which it was involved, and then, after the specific and direct threats to participate in the Zakaria and Chokolatta shootings (but before the shootings were carried out). There are strong factors in support of that contention, but it is an argument that should be made to the jury. It is, as the Crown I think conceded, a question of degree and it will be a matter for the jury to determine whether the defence of duress has been excluded, as it must be, beyond a reasonable doubt by the Crown and, in particular, whether there was some option available to Mr Kalal such as withdrawing from the criminal group or withdrawing from the particular enterprise.

39. For those reasons, I propose to leave the defence of duress for the jury's consideration.

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Endnotes

Decision last updated: 24 November 2016